International Encyclopedia of Public Policy and Administration - Vol. 3

By Jay M. Shafritz | Go to book overview


QUALIFIED IMMUNITY. An exemption from being sued, subject to specific restrictions. It is contrasted to absolute immunity, which is unconditional and without exception (see absolute immunity; sovereign immunity; and official immunity). It must be noted that the conditions applied under the qualified immunity doctrine may be more or less extensive. Some qualified immunity privileges still provide far-reaching protection. There is now a trend toward curtailing immunity to increase accountability and provide remedies against abuses committed by government agencies and their officials. All types of immunity may be qualified in one way or another, whether applying to states, governments, or public officials, domestic or foreign.

Qualified Immunity of Domestic Origin

Under common law, government and state agencies enjoyed absolute immunity; state officials were as liable as any private citizen, but gradually they were given absolute immunity by statute and court decision. Absolute immunity, it was then believed, permitted expeditious and effective administration, sheltered from the threat of liability. The dark side of this doctrine was that the parties harmed by public officials were left without redress even when bureaucrats acted in bad faith and with malicious intent. As Kenneth Warren ( 1996) has observed, government agencies and public officials were thus placed above the law (p. 465). The danger of injustice increased as the influence of governmental institutions became more pervasive.

Eventually, limits began to be imposed on immunity privileges, although this process evolved slowly and unevenly. The Tucker Act of 1855 conferred jurisdiction on United States district courts to hear claims against the United States involving contracts. In 1882, the Supreme Court in U.S. v. Lee questioned the logic of the sovereign immunity doctrine: "Courts of justice are established, not only to decide upon controverted rights of the citizens as against each other, but also upon rights in controversy between them and the government" (106 U.S. 196). Qualified immunity would eventually permit it.

In 1946, Congress passed the Federal Tort Claims Act, allowing suits against the United States government, under certain circumstances, for tortious acts committed by its officials. This act forced the federal government to assume some responsibility for the damage caused by its agents; but it severely limited the tort action suits that could be initiated. The Supreme Court itself was restrictive in its interpretation of the act, making it even more difficult to win tort suits against the federal government. In 1976, Congress amended sections 702 and 703 of the Administrative Procedure Act, thus allowing the U.S. government to be sued for relief, other than money damages.

Reform proved easier at the state level, although another half century elapsed before it could happen on a large scale. Over the past 30 years, however, most states have, either by statute or court decision, eliminated or greatly restricted the doctrine of sovereign immunity. Statutes have been enacted providing for waivers of sovereign immunity: some fairly cautious and limited, as in Utah and California, others comprehensive, as in Washington and New York.

Even more extensive is the retreat from sovereign immunity in judicial practice during the same period. In Muskopf v. Corning Hospital District, a landmark case in this evolution, the California court held that "the rule of governmental immunity from tort liability . . . must be discarded as mistaken and unjust." Sovereign immunity in tort "is an anachronism, without rational basis, and has existed only by the force of inertia" (359 P. 2d 457, 458, 460, Cal. 1961). Increasing numbers of state courts have rejected, to varying extents, the doctrine of sovereign immunity from tort liability.

In 1978, the Supreme Court, in Monell v. Department of Social Services of New York, reversed its earlier stand and ruled that local governing bodies can be sued under Section 1983 of the Civil Rights Act of 1871 when the action falls under certain categories (which it specified), if the governing bodies' policies deprive plaintiffs of their constitutional rights. In Owen v. City of Independence, Missouri ( 1980), the Supreme Court noted that

Section 1983 was intended not only to provide compensation to the victims of past abuses but to serve as a deterrent against future constitutional deprivations as well. . . . The knowledge that a municipality will be liable for all of its injurious conduct, whether committed in good faith or not, should create an incentive for officials who may harbor doubts about the lawfulness of their intended actions to err on the side of protecting citizens' constitutional rights. Furthermore, the threat that damages might be levied against the city may encourage those in policy-making positions to institute internal rules and programs designed to minimize the likelihood of unintentional infringements on constitutional rights (445 U.S. 651-652).

This was a clear enunciation of the profound merit of curbing sovereign immunity.

In the meantime, government officials, once totally liable under common law, had progressively been granted absolute immunity from tort action (see official immunity), and the vast expansion of officials immunity


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International Encyclopedia of Public Policy and Administration - Vol. 3
Table of contents

Table of contents

  • Editorial Board *
  • Title Page *
  • L 1241
  • M 1323
  • N 1471
  • O 1517
  • P 1597
  • Q 1875


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